WG Civil Justice and Dispute Resolution
Chair: Jan Winczorek, University of Warsaw
Paula Casaleiro | University of Coimbra
Experts impact in and beyond the child custody judicial decision
At the end of the 20th century and beginning of the 21st century, in the Western societies, there are two crossing trends: on one hand, a consistent increase of the child custody judicial cases, as a result of the interconnected transformations of family and parental relations, and legal regulation of child custody, and the sentimentalization of childhood. On the other hand, the adoption of best interest standard and requirement of individualized child custody judicial adjudications means that courts rely increasingly on expertise. Thus, there’s a growing involvement of psychologists, psychiatrists, and social workers to help determine what arrangements are in the best interests of children.
Although Portugal followed these international trends, studies on the relationship between law and experts are scarce and disregard child custody cases. The Portuguese law required the elaboration of a social assessment by the Multidisciplinary court support teams in all child custody judicial disputes. The law also allowed the appointment of other professionals, such as psychologists, as court assessors in the child custody proceedings. Therefore it is crucial to understand the interaction between judges and child custody experts, in child custody cases in the Portuguese family courts.
This paper aims to analyse the impact of experts in the child custody judicial cases and decisions, through the document analysis of child custody proceedings and interviews with judicial and non-judicial actors. The analysis reveals the extent and heterogeneity of the impact of expertise in child custody judicial cases, which goes beyond the judicial decision, to different procedural acts. Experts are simultaneously a constraint to the proceedings duration and judicial decisions and a binding resource to the court proceedings and judgments in child disputes.
Luigi Cominelli | Università degli Studi di Milano
Claudio Lucchiari | Università degli Studi di Milano
Raffaella Folgieri | Università degli Studi di Milano
Brain-in-Negotiation: How to Test and Improve Cooperative Problem Solving Skills among Law Professionals through the Brain Computer Interface
Negotiating skills are not part of the traditional lawyer's training. Today, however, new skills are required of the lawyer to resolve disputes consensually before traial. At the international and national levels, legal systems have promoted such skills by introducing practices such as mediation (Dir. EU 52/2008 and Legislative Decree no. 28/2010) - that many define as a negotiation facilitated by a third - and assisted negotiation (L. 162/2014). This article outlines the methodology for a pilot study involving qualified lawyers and law students, to investigate cooperative problem-solving skills through non-invasive neuroscientific tools, portable and therefore usable in environmental contexts. More and more neuro-cognitive studies use the Brain Computer Interface (BCI) as a measurement and training tool. The BCI consists of a conventional EEG device, but with a small number of electrodes and a high degree of wearability, thanks to the use of dry sensors and wireless connections. Initially used for clinical purposes, current applications are multiple and range from video games to education, from basic to applied research. The paper investigates possible applications of BCI-based training programs to develop negotiating skills. In particular, the use of a neurofeedback system during the course of negotiation simulations provides awareness of implicit and deep reaction, with a consequent strengthening of self-regulation processes. In addition, the ability to use group settings in which multiple people use BCI devices simultaneously enables the development of multi-signal based protocols and cortical synchronization processes, enabling both the implementation of more complex training and the poorly traced data collection in traditional experimental settings. The use of BCI would allow negotiators to develop training in neuro-cognitive tools explicitly rather than implicitly, with more interaction between intuitive and analytical thinking systems, whose degree of balancing is usually not measured and not subject to specific training.
Michael Dusche | University of Heidelberg
Beyond the Law: The Justice Regime of the Spritits of Tulunadu
In India, Sanskritic legal discourse as well as popular discourse on justice, revolves around two terms, nīti and ñāya. Whereas nīti focuses on abstract rules, ñāya focusses on negotiated settlements. In Amartya Sen’s terms, nīti attempts to arrive at justice through institutional arrangements (law, courts), whereas ñāya attempts it through consensual processes mediated by divine persons (kings, lords) or deities (gods, spirits). A similar opposition lights up in the conceptual pair just/equitable (recht/billig). Since the emergence of the modern state, law (Recht) has increasingly displaced equity (Billigkeit) as a way to justice. The fact that today there is hardly any scope for ñāya shows that we have become blind to the fundamental aporia of law: The fact that all law has to abstract from real live circumstances and can therefore never match the demands of particular persons in specific situations. Law creates clarity and predictability at the expense of justice (ñāya). This may be convenient from the perspective of the state (governmentality) or from the perspective of large corporations calling for legal certainty. But from the citizens’ perspective it remains a high price to be paid. In its eulogies, justice is depicted as blind, as if the ignorance of personal circumstances would be a prerequisite for the arrival at justice. Ňāya, in contrast, attempts to arrive at justice in full view of the concerned persons and their circumstances. The preferred mode in procedures of nīti is strategic communication. The necessary prerequisite for the arrival at ñāya is the truthfulness and sincerity of all parties (satya). Its guarantor is the all-seeing godhead. Since secular societies have done away with the latter, they have created a quasi-religious belief in the potential justice of the law. Quasi-legal terms (rights) are even evoked in the criticism of law. We find ourselves trapped in legal discourse, which, because of the above mentioned aporia, can never lead to justice. This is therefore the right place to re-emphasise the human ability of acting together as a means of conflict resolution before and outside the law. This paper wants to illustrate this human potential with reference to a system of conflict resolution still extant in modern India: the justice regime of spirits in Tulunadu, which operates completely independently from any notion of law in the way we understand it in the West today (absoluteness, literalness, natural law-likeness).
Toshihiro Hayase | Nagasaki University
Negative common right and conservation easement－The grove of the village shrine living in the location of Kaminoseki nuclear plant as example
I mention conservation easement which is servitude for the purpose of the environmental conservation.
Also I reconsider Iriai-ken (right of common) in Japanese legal perspective. Iriai-ken which does not have the nature of co-ownership shall be governed by local customs and shall otherwise be subject to the mutatis mutandis application of the provisions of the Section (easement appurtenant) in Japanese civil code.
Then, on the subject of the following litigation case, I would like to discuss with Fusakui-no-Iriai-ken (negative common right) that is rights of common without the nature of co-ownership.
We, in Japanese legal culture, cannot overlook manifestation of the conservation easement-like common right governed by the custom of village on the Shinto shrine's commonage that is Chinjyu-no-mori (the grove of the village shrine).
On the Chinjyu-no-mori in Kaminoseki-cho, Yamaguchi, Chugoku Electric Power carries out the Kaminoseki nuclear power plant construction project since 1981, despite of the Great East Japan Earthquake and the Fukushima Daiichi Nuclear Disaster.
I apply a genuine evaluation to common right (environmental conservation function) by recognizing the conservation easement-like negative common right in the situation of the law case.
Susana Atalaia | ICS - Instituto de Ciências Sociais
Stepfamilies and the law: the Portuguese case
This paper aims to analyse stepparents’ legal status in Portugal. Drawing on the literature on custody and visitation rights, child support obligations, adoption and inheritance rights, it discusses stepparents’ rights and obligations regarding stepchildren. At a time characterized by an increasing family diversity (lone-parent families, stepfamilies, same-sex couples, etc.), how does family law regulate and protect the social ties established between stepfamily members?
Data from the Portuguese Census indicate that, between 2001 and 2011, the number of stepfamilies more than duplicated (126%), moving from 46.786 to 105.763. These results suggest that family formation after a conjugal break-up has become a much more common practice in the Portuguese society than it was in the past. At the same time, there was an increase in the number of individuals enrolled in a stepfamily household, namely children. In 2011, 137.064 children under 18 years old lived in a stepfamily, corresponding to 7% of the resident population in this age group.
Although in the past stepfamilies were mainly preceded by widowhood and stepparents usually replaced the deceased parent, nowadays stepfamilies are mainly preceded by a conjugal break-up and stepparents have to create their own role. In this sense, stepparents are often significant parental figures, who share the parental tasks and responsibilities with the biological parents, providing for the stepchild in terms of guidance, money, daily care and love.
However, unlike other European countries (e.g. United Kingdom), the Portuguese legal system seems to prevent rather than promote the recognition of the stepparent’s role. According to Article 1906.º, n.º4, of the Portuguese Civil Code (amended by Law no.º 61/2008) both the mother and the father can delegate to a third person the exercise of specific parental tasks related to the child’s daily life, but this recognition does not answer to the problems raised by the stepparent/stepchild relationship in case of conjugal break-up or death. Regardless their growing statistical evidence, Portuguese stepparents’ still have no legal rights, nor obligations, in the performance of their role, suggesting the predominance of biological affiliation in terms of parental rights and obligations.